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CIRCULAR No. 133/2004/TT-BTC OF DECEMBER 31, 2004 GUIDING THE IMPLEMENTATION OF THE AGREEMENTS ON DOUBLE TAXATION AVOIDANCE WITH RESPECT TO TAXES ON INCOME AND PROPERTY BETWEEN VIETNAM AND OTHER COUNTRIES AND IN FORCE IN VIETNAM

Pursuant to the current legal documents on enterprise income tax, income tax on high-income earners and other taxes applicable to overseas investment of Vietnamese enterprises;

Pursuant to the Agreements on avoidance of double taxation and prevention of fiscal evasion with respect to taxes on income and property between Vietnam and other countries or territories currently in force;

Pursuant to the Government’s Decree No. 77/2003/ND-CP of July 1, 2003 defining the functions, tasks, powers and organizational structure of the Finance Ministry;

The Finance Ministry hereby guides the implementation of the fundamental contents of the Agreements on avoidance of double taxation and prevention of fiscal evasion with respect to taxes on income and property between Vietnam and other countries in force in Vietnam (hereinafter referred to as the Agreements for short), as follows:

A. GENERAL PROVISIONS

I. SCOPE OF APPLICATION

This Circular regulates the subjects that are residents of Vietnam or of the Contracting State to an Agreement concluded with Vietnam or of both.

1. Under the Agreements, the term “a resident of the Contracting State” means any person who, under the laws of that state, is liable to tax therein by reason of:

1.1. That person has an home, a period of residence in that State or any other criterion of similar nature, in the case of an individual; or

1.2. That person has a place of management, a registered office, or is established in that State or has any other criterion of similar nature, in the case of an organization.

2. According to the laws of Vietnam, the following persons are regarded as residents of Vietnam:

2.1. Individuals holding the Vietnamese nationality, individuals who do not hold the Vietnamese nationality but reside indefinitely in Vietnam, foreigners who are present in Vietnam for 183 or more days computed over 12 consecutive months for the first taxable year as from the time those persons arrive in Vietnam and 183 or more days for the following calendar years, in which the day of arrival and the day of departure are counted as 01 (one) day.

2.2. Organizations established and operating under the laws of Vietnam, such as State enterprises, cooperatives, limited liability companies, joint-stock companies, private enterprises, partnerships, joint-venture enterprises, enterprises with 100% of foreign capital, joint-venture banks, joint-venture financial companies, financial companies with 100% of foreign capital, joint-venture financial leasing companies, financial leasing companies with 100% of foreign capital, which are licensed to conduct business in Vietnam.

3. In cases where a person is deemed to be a resident of both Vietnam and the Contracting State to an Agreement concluded with Vietnam under the provisions of Points 1.1 and 1.2 above, the criteria in the following priority order shall serve as the basis for determining whether the person is a resident of Vietnam:

3.1. For an individual:

3.1.1. If that individual has a permanent home in Vietnam (either under his/her ownership or, for rented houses, his/her use right), he/she shall be deemed to be a resident of Vietnam.

3.1.2. If that individual has permanent homes in both countries, but he/she has a closer economic relation in Vietnam such as an employment, a business location, a place for personal property management or closer personal relations in Vietnam such as familial relation, social relation (i.e. member of a social organization or professional association, etc.), he/she shall be deemed to be a resident of Vietnam.

3.1.3. If it is impossible to determine in which State that individual has closer economic or personal relations or if he/she has no permanent home in either of the States but has a longer time of presence in Vietnam in the taxable year, he/she shall be deemed to be a resident of Vietnam.

3.1.4. If that individual is regularly present in both Vietnam and the Contracting State to an Agreement concluded with Vietnam or in neither of the States but he/she holds the Vietnamese nationality, he/she shall be deemed to be a resident of Vietnam.

3.1.5. If that individual holds the nationalities of both Vietnam and the Contracting State to an Agreement concluded with Vietnam or of neither of the States, the Vietnamese competent authorities shall settle this question through mutual agreement procedure with the competent authorities of the other Contracting State.

3.2. For companies, business organizations:

3.2.1. If these persons are established in Vietnam, they shall be deemed to be residents of Vietnam;

3.2.2. If these persons are established in both of the Contracting States, the competent authorities of the two States shall determine such persons to be residents of either of the two States under a common agreement; or if they have places of effective management in Vietnam, they shall be deemed to be residents of Vietnam.

An enterprise’s place of effective management is the place where the enterprise situates its office to organize, operate and make decisions on its production and business. The place of effective management is normally the place where high-ranking officials (for example, the leadership) meet to consider, discuss and make managerial decisions or where important accounting books are recorded and archived for the execution of production or business decisions, or has another criterion of similar nature.

The above-said provisions on residents are included in the Article Resident (usually Article 4) of the Agreements.

II. IMMUNITIES OF DIPLOMATIC AND CONSULAR MISSIONS

Under the Agreements, the provisions of the Agreements shall not affect the immunities of members of a diplomatic or consular mission prescribed in the international treaties which the Socialist Republic of Vietnam has signed or acceded to.

The above-said provisions on immunities of diplomatic agents and consular officers are included in the Article Members of Diplomatic Missions and Consular Posts (usually Article 27) of the Agreements.

III. PRINCIPLES FOR APPLICATION OF DOMESTIC LAWS AND DOUBLE TAXATION AVOIDANCE AGREEMENTS

1. In cases where there are disparities between the provisions of the Agreements and those of domestic laws, the provisions of the Agreements shall apply.

2. The Agreements shall not create new tax obligations or tax obligations that are different from or heavier than those prescribed by the domestic tax laws. For example: Where an Agreement contains provisions under which Vietnam is entitled to tax a certain type of income but Vietnam’s tax law has not yet provided for the taxation of such income or provides for a lower rate, Vietnam’s tax law shall apply.

3. When Vietnam implements the provisions of an Agreement, at a certain time the terms which are not yet defined in the Agreement shall have the meanings provided for in Vietnam’s laws for the taxation purpose at such time, unless where a different interpretation is required by the context.

4. This Circular guides the implementation of the fundamental contents of the Agreements. When applied, the tax-related handling in each case must be based on the specific provisions of each Agreement (including also the protocol and/or notes of exchange, if any) already in force in Vietnam (Appendix 1 enclosed herewith).

B. TAXES ON DIFFERENT TYPES OF INCOME

I. INCOME FROM IMMOVABLE PROPERTY

1. Definition of immovable property

Under the Agreements, immovable property existing in Vietnam is defined in Vietnam’s Civil Code’s Article 181: Immovable property and movable property. The term shall also include auxiliary property attaching to immovable property, cattle herds and equipment used in agriculture and forestry, benefits enjoyed under the provisions of the Land Law, the right to use immovable property, the right to enjoy payments for the natural resource exploitation or the right to exploit natural resources.

Ships, boats, aircraft shall not be regarded as immovable property.

Example 1: A foreign resident shall be regarded to have immovable property in Vietnam if such person owns immovable assets in Vietnam, such as dwelling houses, construction works, or has the land use rights in Vietnam (according to the Civil Code’s Article 181: Immovable property and movable property) and if such person has a cattle herd in Vietnam directly related to such land use rights, this cattle herd shall be also regarded as immovable property in Vietnam.

2. Determination of tax obligation

Under the Agreements, all types of income earned by a resident of a Contracting State to an Agreement concluded with Vietnam from the direct use, exploitation or letting of assorted immovable property in Vietnam, including also immovable property of enterprises or independent service-providing individuals, shall be taxed in Vietnam in accordance with Vietnam’s tax law.

Example 2: Overseas Vietnamese person X is a resident of Singapore owns a house in Vietnam and uses it for letting. Income from the letting of this house shall be taxed in Vietnam though such person is not present in Vietnam throughout the taxable period.

The above-mentioned provisions on taxation on income from immovable property are included in the Article Income from immovable property (usually Article 6) of the Agreements.

II. BUSINESS INCOME

1. Definition of business income

Under the Agreements, business income means income of enterprises of the Contracting States (hereinafter called foreign enterprises) carrying out production and business activities in Vietnam, excluding the types of income mentioned in Section I and Sections from III through XVII, Part B of this Circular.

2. Determination of tax obligation

2.1. Cases where foreign enterprises carrying on production and business activities in Vietnam without forming legal persons in Vietnam.

Under the Agreements, business income of a foreign enterprise shall be taxed in Vietnam only if such enterprise has a permanent establishment in Vietnam and such income is directly or indirectly related to that permanent establishment. In this case, the foreign enterprise shall be taxed in Vietnam only on the portion of income apportioned to such permanent establishment.

2.1.1. Definition of permanent establishment

2.1.1.1. Under the Agreements, “permanent establishment” means a fixed place of business of an enterprise, through which the business of the enterprise is wholly or partly carried on.

An enterprise of a Contracting State shall be regarded to have a permanent establishment in Vietnam if it fully satisfies the following three conditions:

a/ Maintaining in Vietnam an “establishment”, for example a building, an office or part thereof, a means or equipment, etc; and

b/ This establishment must be fixed, i.e. it must be established at a specified place and/or maintained on a permanent basis. The fixedness of a business establishment must not necessarily mean that such establishment must be attached to a specific geographical point for a certain length of time; and

c/ The enterprise carries on wholly or partly business activities through this establishment.

Example 3: Chinese company X opens a stall in a Tet (New Year) market place in Vietnam, through which it sells goods items. Then, this stall shall be regarded as a permanent establishment of company X in Vietnam.

2.1.1.2. An enterprise of the Contracting State shall be regarded to conduct business activities through a permanent establishment in Vietnam in the following major cases:

a/ That enterprise has in Vietnam: place of management, branch (such as branch of a law firm, branch of a foreign office, branch of a tobacco company, branch of a bank, etc.), office (including commercial representative office authorized to negotiate and sign commercial contracts), factory, workshop, mine, oil or gas well, forwarding storehouse, a place of exploration or exploitation of natural resources, or has equipment, facilities used for the exploration and exploitation of natural resources in Vietnam.

Example 4: A foreign subcontractor that uses means, equipment and labor for participation in oil and gas exploration activities in Vietnam shall be regarded to conduct business through a permanent establishment in Vietnam.

b/ That enterprise has in Vietnam a building site, a construction, installation or assembly project, or carries on supervisory activities in connection therewith, provided that such site, project or activities last for more than 6 months or 3 months (depending on each Agreement) in Vietnam.

Building sites, construction or installation projects include the building site, construction of houses, roads, bridges, sewerage, installation of pipelines, excavation, dredging, etc. The period (of 6 months or 3 months) is calculated from the date the contractor commences the preparation for the construction in Vietnam, such as establishing its office, planning the construction design, until the completion and transfer of the entire construction project in Vietnam, including the time of discontinuance of the project for any reasons.

Sub-contractors of the Contracting State participating in the aforementioned construction or installation projects shall be also regarded to conduct business in Vietnam through permanent establishments if they meet all conditions stated at Points 2.1.1.1 above.

The time of execution of projects for the determination of permanent establishments for principal contractors shall be the sum of the time for the execution of contractual components by sub-contractors and the time of execution by the principal contractor.

Example 5: Japanese company Z wins the bid for building a bridge in Vietnam. Bridge-building activities proceed as follows: 5 months of building bridge piles by sub-contractor Y and 3 months of building the bridge floor and finishing by contractor Z itself. In this case, company Z shall be regarded to conduct business in Vietnam through a permanent establishment because the total time of building the bridge is 8 months (5 months + 3 months).

c/ That enterprise provides services including also consulting services in Vietnam through its staff or another person, provided that these services in a related project or projects last in a period or periods exceeding 183 days in each 12-month period.

Example 6: In 2000, a Sweden aircraft-manufacturing company D entered into an aircraft maintenance service contract with Vietnam Airlines. Under this contract it sent teams of technical experts to Vietnam to work for a total of 190 days (more than 183 days) in that year. So, the company shall be regarded to have a permanent establishment in Vietnam.

d/ That enterprise has in Vietnam a brokerage agent, a commission agent or any other agent, and such agents devote wholly or most of their agency activities for that enterprise (dependent agent).

Example 7: Company V, a resident of Vietnam, signs an agency contract for storage and delivery of paint products with company H, a resident of the Great Britain. Under this contract, company V is not allowed to act as agent for another paint manufacturer or distributor. In this case, though having no function to sign contracts or collect money in Vietnam, company V has become a dependent, not independent, agent. Under the Vietnam-Great Britain Agreement (Clause 6 or Article 5: Permanent establishment), company H shall be regarded to have a permanent establishment in Vietnam.

e/ That enterprise gives a person in Vietnam:

(i) An authority to habitually negotiate and conclude contracts in the name of the enterprise; or

(ii) No such authority, but the right to habitually represent that company to deliver goods in Vietnam.

2.1.1.3. A foreign enterprise shall not be regarded to have a permanent establishment in Vietnam in the following cases:

a/ That enterprise uses facilities in Vietnam solely for the purpose of storage, display of its goods;

b/ That enterprise has a stock of goods in Vietnam solely for the purpose of storage, display or of processing by another enterprise;

c/ That enterprise has a fixed place of business in Vietnam solely for the purpose of purchasing goods or collecting information for the enterprise;

d/ That enterprise has a fixed place of business in Vietnam solely for the purpose of carrying on preparatory or auxiliary activities for the enterprise;

2.1.1.4. In cases where a resident of the Contracting State to an Agreement concluded with Vietnam controls, or is controlled by, a company that is a resident of Vietnam, or is conducting business in Vietnam (possibly through a permanent establishment or in other forms), neither of the companies shall become a permanent establishment of another company.

For example, a foreign enterprise contributes its capital to a joint-venture company or a company with 100% foreign capital in Vietnam. In this case, the joint-venture company or the company with 100% foreign capital shall not be regarded a permanent establishment of that foreign enterprise.

2.1.2. Determination of taxable incomes of permanent establishments

2.1.2.1. In cases where a permanent establishment of a foreign enterprise is licensed to conduct business in Vietnam and pays tax by the declaration method, the determination of the taxable income of the permanent establishment shall be made as for business establishments liable to enterprise income tax in accordance with documents guiding the payment of enterprise income tax by the declaration method.

2.1.2.2. In cases where the guiding documents contain regulations applicable to each form of permanent establishment (for example: branches of foreign organizations, individuals operating in Vietnam), the relevant regulations shall apply.

2.1.2.3. Where a permanent establishment of a foreign enterprise conducts business under the contract signed between itself and a Vietnamese organization or individual not falling within the scope of regulation of Points 2.1.2.1 and 2.1.2.2 above, its taxable income shall be determined in accordance with the regulations on the tax regime applicable to foreign contractors.

2.1.2.4. When determining the income apportioned by the headquarters to a permanent establishment, the permanent establishment shall be regarded as an independent enterprise jointly conducting the same or similar activities under the same or similar conditions totally independent from its headquarters.

The above-mentioned provisions on taxation on business incomes are included in the Article Permanent establishment (usually Article 5) and the Article Business income (usually Article 7) of the Agreements.

2.2. Cases where foreign enterprises carry on production and business activities in Vietnam through forming legal persons in Vietnam.

According to Vietnam’s current laws, foreign enterprises may conduct business in Vietnam through forming such legal persons in Vietnam as joint-venture enterprises or enterprises with 100% foreign capital.

Under the Agreements, these legal persons are obliged to pay tax on incomes from their production and business activities like other Vietnamese enterprises in accordance with the current provisions of the enterprise income law. Particularly, incomes that are earned by foreign enterprises in the form of profit divided to investors or income from the transfer of contributed capital amounts (if any) shall comply with the provisions of the relevant articles of the Agreements on Dividends or Income from Alienation of Property.

Example 8: A Chinese company T contributes capital to a joint-venture company X in Vietnam. Income earned by joint venture X from its business activities shall be taxed as applicable to any other Vietnamese legal persons. Income items received by company T from joint venture X, though being in essence income from company T’s business activities in Vietnam, shall be taxed in accordance with the provisions of the different articles of the Agreements (included in Section IV: Dividends, Section V: Interest, Section VI: Royalties, and Section VII: Income from technical service provision, in Part B of this Circular).

III. INCOME FROM INTERNATIONAL TRAFFIC

1. Definition of international traffic

Under the Agreements, international traffic means activities of carrying cargoes, passengers by ship or aircraft (some cases specified in each particular Agreement may also include means of road transport, inland waterway transport, hereinafter referred collectively to as transport means), conducted by enterprises of the Contracting State, except for the case these transport activities take place only between two places in Vietnam or in the Contracting State to an Agreement concluded with Vietnam.

Example 9: A Japanese company transports cargoes and passengers in Vietnam. The following passenger and cargo transport activities of this enterprise shall be regarded as international traffic:

- Carriage of cargoes and passengers from a place in Vietnam to a place in Japan (including also the carriage of cargoes and passengers from Hai Phong via Ho Chi Minh City and Osaka to Tokyo);

- Carriage of cargoes and passengers from a place in Vietnam to a place outside Vietnam (for example, Singapore);

In cases where a ship of the above-mentioned Japanese enterprise carries tourists on a package tour of Ho Chi Minh City - Singapore - Hai Phong; it starts off at Ho Chi Minh City and calls at the Singaporean port, after visiting Singapore, all passengers return to the ship for Hai Phong. In Singapore, this ship does not receive any more passengers. So, the passenger transport on the above-said voyage shall not be regarded as international traffic (because its departure point and final arrival point are in Vietnam, though the ship’s voyage consists of a trip occurring outside Vietnam).

2. Identification of beneficial owners

Depending on each Agreement, international traffic enterprises of the Contracting State shall be identified according to the following criteria:

2.1. Enterprises are managed by residents of Vietnam or of the Contracting State to an Agreement concluded with Vietnam, or

2.2. Enterprises have a place of effective management in Vietnam or in the Contracting State to an Agreement concluded with Vietnam, provided that these enterprises own or have the right to use at least the whole of a transport means and use such means for cargo and/or passenger transport on international traffic routes (called transport means directly managed by enterprises).

3. Determination of the application scope

Depending on the provisions of each Agreement, income derived from international traffic by the persons stated at Point 2 above shall enjoy tax reduction or exemption in Vietnam or in the Contracting State to an Agreement concluded with Vietnam.

The scope of application of tax exemption or reduction in Vietnam to enterprises of the Contracting State to an Agreement concluded with Vietnam covers:

3.1. Income from international traffic by transport means of directly managed by enterprises and from auxiliary activities attaching to such international traffic, specifically:

3.1.1. Turnover from international traffic by transport means directly managed by enterprises which issue transport documents (tickets, bills of lading or passenger and cargo transport manifests).

3.1.2. Turnover from the charter of part of transport means (also called space charter) or from the charter of the whole of transport means by shipment directly managed by enterprises.

Example 10: Japanese shipping company A agrees to transport cargoes of company C from Vietnam to Holland with the freight of USD 300. As shipping company A has no ship under its direct management, it charters a space aboard a ship of shipping company B of Thailand at the freight of USD 250. Apart from the above-said carriage of cargoes for shipping company A, shipping company B also directly transports cargoes of other customers on the same trip with the freight of USD 200. In this case:

- For shipping company A, the amount of USD 300 earned from the transport of cargoes for Company C or the amount of USD 50 earned as a difference from its transport of cargoes for Company C and charter of a space aboard the ship of company B shall all be regarded as income from international traffic by sea-going ship so as to enjoy exemption or reduction under the Vietnam-Japan Agreement because Company A does not directly manage the ship (just buying a space aboard the ship of shipping company B). Therefore, it is still liable to full payment of enterprise income tax.

- For shipping company B, the freight of USD 450 shall be regarded as income from international traffic entitled to tax reduction under the Vietnam-Thailand Agreement (a 50% reduction of enterprise income tax, i.e. a reduction of 0.5% of enterprise income tax over 3% of payable freight tax).

3.1.3. Turnover from the carriage of cargoes or passengers when the enterprises enter into partnerships to operate on international traffic routes, provided that the enterprises enter into the partnerships on the basis of contributing transport means directly managed by the enterprises or contributing funds for the operation of the transport means directly managed by the partnerships and the involved parties use separate transport documents. In this case, turnover shall be determined on the basis of transport documents issued by the enterprises of the partnerships but must not exceed the space limits of the transport means which the enterprises may exploit in accordance with the partnership agreements.

3.1.4. Turnover from the carriage of passengers or cargoes by transport means managed by other enterprises, with international traffic documents issued by the enterprises under either of the following two conditions:

a/ Such carriage stage is part of the international traffic trip by ship or aircraft directly managed by the enterprises and is stated in the transport documents issued by the enterprises themselves;

Example 11: Using example 10 above, Japanese shipping company A agrees to transport cargoes of company C from Vietnam to Holland with the freight of USD 300. Yet, shipping company A has ship A1 under its direct management and this ship transports cargoes at the second stage from Singapore to Holland. For the first stage from Vietnam to Singapore, company A has to hire shipping company B of Thailand to transport the cargoes with the freight of USD 50.

- For shipping company A: the amount of USD 250 (300 - 50) earned from the direct carriage of cargoes in international traffic shall be eligible for tax reduction under the Vietnam- Japan Agreement (a reduction of 1% of enterprise income tax over 3% of payable freight tax).

- For shipping company B: the freight of USD 50 shall be regarded as income from international traffic eligible for tax reduction under the Vietnam- Thailand Agreement (a 50% reduction of enterprise income tax, i.e. a reduction of 0.5% of enterprise income tax over 3% of payable freight tax).

b/ That carriage is effected on the basis of the agreement on the swapping of a space aboard a transport means (called space swapping) directly managed by an enterprise for a corresponding space aboard another transport means managed by another enterprise. In this case, turnover shall be determined on the basis of transport documents issued by the enterprise itself but must not exceed the space limit the enterprise is allowed to exploit free of charge aboard the means of the counterpart company in accordance with the space swapping agreement.

3.1.5. Income from the short-term letting (keeping) of containers as an auxiliary activity attaching to the operation of the transport means directly managed by enterprises, if prescribed in the Agreements.

The nature of auxiliary activity attaching to the operation of transport means of the short-term letting (keeping) of containers shall be determined to be containers accompanying the transport means entering a Vietnamese port, containers currently containing import cargoes and the container use charge is included in the freight; income from the short-term letting of containers arises because the goods recipients keep containers beyond the time limit for free-of-charge use.

3.1.6. Turnover from the charter of bare ships or aircraft (called bareboat charter) which is auxiliary to the international traffic operation of the transport means directly managed by the enterprises, if it is specified in the Agreements and fully meets the following three conditions:

a/ The transport means is being used by the enterprise in international transport; and

b/ The total chartering time is shorter than the time the transport means is operated for international traffic by the enterprise itself within 12 months starting or ending the calendar year; and

c/ The charterer must not change the name and call signals of the transport means.

Bareboat charter means that the charter of a ship whereby the charterer is fully responsible for the management and control of the operation of the chartered ship, including pilot, manpower, fuel, repair, operation, insurance premiums and other expenses for the operation of the ship in accordance with maritime and aviation regulations. The charteree shall not be responsible for any expenses or obligations towards the operation of the ship.

Turnover mentioned at Points 3.1.5 and 3.1.6 above shall not be regarded as turnover from auxiliary activities attaching to international traffic for application of the Agreements if enterprises do not derive any turnover items stated at Point 3.1.1, 3.1.2, 3.1.3 or 3.1.4.

3.2. Where two or more enterprises carry on partnership activities in order to create a partnership without legal person status to carry on international traffic activities with transport means directly managed by the partnership and transport documents issued in the name of such partnership, the identification of the scope of tax exemption and reduction under an Agreement shall be made separately for each party to the partnership under the Agreement concluded between Vietnam and the country of which the party to the partnership is a resident or in which the party to the partnership has its place of effective management. The bases for determination of turnover entitled to tax exemption or reduction shall be similar to those stipulated at Point 3.1 and such turnover shall be apportioned according to the percentage of turnover divided to the party to the partnership in accordance with the partnership contract or agreement.

Example 12: The Scandinavian Airlines (SAS) partnership is engaged in transporting international passengers from Vietnam to Northern European countries. Therefore, the airlines’ turnover arising in Vietnam shall be apportioned to the parties contributing capital to, and managing, SAS, which are residents of Norway, Denmark or Sweden for application in accordance with each relevant Agreement.

When declaring their tax obligations, the above-said enterprises must separately account the aforesaid income items for consideration of enterprise income tax exemption or reduction in accordance with the provisions on income from international traffic. In all cases, turnover considered for tax exemption or reduction must not exceed the enterprise income tax-liable turnover of international traffic in accordance with relevant regulatory documents.

Where an Agreement (like the Agreements with Thailand and the Philippines) stipulates only a percentage of income tax reduction, enterprises shall have to pay income tax on income from international traffic according to the non-reduction percentage. Enterprises engaged only in transporting cargoes and/or passengers between two places in Vietnam shall have to pay tax in Vietnam in accordance with Vietnam’s tax law.

The above-said provisions on taxation on income from international traffic are included in the Article International traffic (usually Article 8) of the Agreements.

IV. DIVIDENDS

1. Definition of dividends

Under the Agreements, dividends mean amounts deducted from the after-tax incomes of limited liability companies, joint-stock companies and paid to shareholders, amounts deducted from after-tax incomes of joint-venture enterprises, enterprises with 100% foreign capital and paid to foreign parties, incomes derived from overseas (indirect) investment activities (excluding loan interests under the provisions of Section V: Interest, Part B of this Circular) by residents of Vietnam, and Vietnamese enterprises’ divided incomes from overseas direct investment, which are treated by the Contracting States like dividends.

Example 13: Vietnamese enterprise S invests in States X and Y and the situation of its income and tax payment according to the regulations of States X and Y is as follows:

Ordinal number

State X

State Y

1

Pre-tax income

100

100

2

Income tax of 28%

28

28

3

After-tax income

72

72

4

Income tax on dividends

14.4 (tax rate of 20%)

No dividends

5

Actually received income

57.6

72

So, enterprise S is regarded to have overseas dividends of 72 within the scope of the Agreement with State X and to have no dividends within the scope of the Agreement with State Y.

2. Determination of tax obligation

2.1. Under the Agreements, Vietnam is entitled to tax dividends paid by a company being a resident of Vietnam to a resident of the Contracting State to an Agreement concluded with Vietnam at the limit rate set in each Agreement (usually not exceeding 15%, provided that the recipient is the beneficial owner.

2.2. Where a resident of Vietnam receives dividends of a company being a resident of the Contracting State to an Agreement concluded with Vietnam, the Contracting State to an Agreement concluded with Vietnam shall be entitled to impose income tax in accordance with the provisions of Point 2.1 above and Vietnam shall be entitled to tax this income in accordance with Vietnam’s tax law; but at the same time Vietnam must apply methods for elimination of double taxation on this income (provided for in Part C: Methods for elimination of double taxation in Vietnam, of this Circular).

2.3. Where a resident receives dividends which, under Vietnam’s tax law, are not subject to income tax or are subject to income tax at a rate lower than that prescribed in the Agreement, such resident shall fulfil the tax obligation prescribed by Vietnam’s tax law.

Example 14: A British company invests USD 14 million in a joint-venture company in Vietnam and in 2003 it received and remitted some of its divided income abroad. Under the Vietnam-Great Britain Agreement (Clause 2.a of Article 10: Dividends), Vietnam is entitled to tax such income at the rate of 7%. But according to its current laws, Vietnam does not tax this income, so the British company does not have to pay tax on the above-said income.

3. Determination of beneficial owners

Under the Agreements, the provisions on taxation on dividends shall apply only to beneficial owners of the benefits of shares, namely shareholders. Therefore, they shall not apply to:

3.1. Recipients of paid dividends, which are not shareholders.

3.2. Dividends paid by companies being residents of Vietnam to the Vietnam-based permanent establishments of the residents of the Contracting State to an Agreement concluded with Vietnam.

Example 15: Bank branch CV, a Vietnam-based branch of French bank C, purchases shares of a Vietnamese joint-stock company and is divided a dividend. At the request of CV branch, such dividend is directly remitted to bank C headquartered in Paris. In this case, the beneficial owner of the dividends is branch CV, not bank C. Because branch CV is a Vietnam-based permanent establishment of bank C so, under the Vietnam-France Agreement (Clause 5 of Article 10: Dividends), the provisions on taxation on dividends shall not apply to bank C but the provisions on taxation on income from business activities shall apply (Article 7: Enterprise profits, the Vietnam-France Agreement).

3.3. Dividends paid by a company being a resident of Vietnam to another Vietnamese company’s permanent establishment based in the Contracting State to an Agreement concluded with Vietnam.

Example 16: Vietnamese bank V has a branch VC in State L, the Contracting State to an Agreement concluded with Vietnam. According to the laws of State L, branch VC is regarded as a permanent establishment of bank V in such State. Branch VC purchases shares of a Vietnam-based company and receives dividends therefrom. In this case, the provisions on taxation on dividends in the Vietnam-L Agreement shall not be applied.

The above-said provisions on taxation on dividends are included in the Article Dividends (usually Article 10) of the Agreements.

V. INTEREST

1. Definition of interest

Under the Agreements, “interest” means income from money amounts lent in any forms, secured or not secured by mortgage and with or without the borrower’s right to enjoy profits, and especially income from government securities and income from bonds or debentures, including also premiums and prizes attaching to such securities, bonds or debentures.

2. Determination of tax obligation

2.1. Under the Agreements, Vietnam is entitled to tax interest arising in Vietnam and paid to a resident of the Contracting State to an Agreement concluded with Vietnam at a limit rate (usually not exceeding 10%), depending on each Agreement, provided that the recipient is the beneficial owner.

Interest arising in Vietnam means interest from lent money which is borne and paid by any resident of Vietnam, including interest borne and paid by the Vietnamese government and Vietnamese local authorities or Vietnam-based permanent establishments or fixed places of foreign residents.

Example 17: Bank branch QT, a Vietnam-based branch of Thai bank Q, pays to bank Q an interest. Because branch QT is a Vietnam-based permanent establishment of bank Q, this interest, under the Vietnam-Thailand Agreement, is regarded as arising in Vietnam and being taxed in Vietnam at the rate of 10% (Clause 2.a of Article 11: Interest). This tax rate is equal to that prescribed in Vietnam’s current income tax documents. So, Vietnam is entitled to collect tax at source at the rate of 10%.

2.2. In cases where a resident of Vietnam receives an interest arising in the Contracting State to an Agreement concluded with Vietnam, such Contracting State is entitled to tax at source such income as stipulated at Point 2.1 above and Vietnam is also entitled to tax this income in accordance with Vietnam’s tax law but, at the same time, Vietnam must apply methods for elimination of double taxation on this income (prescribed in Part C: Methods for elimination of double taxation in Vietnam, of this Circular).

2.3. In cases where Vietnam’s tax law does not provide for the taxation on this type of income or provides for the taxation at a rate lower than that prescribed in an Agreement, the income earners shall fulfil the tax obligation prescribed by Vietnam’s tax law.

Example 18: Using example 17 above, but with the assumption that the interest is paid to a resident being an individual in Thailand. Though, under the Vietnam-Thailand Agreement (Clause 2.b of Article 11: Interest), Vietnam is entitled to tax this income at the rate of 15%, according to Vietnam’s current income tax law, the applicable tax rate is 10%. So, Vietnam collects tax only at the rate of 10%, instead of 15%.

3. Identification of beneficial owners

Under the Agreements, the provisions on taxation on income being interests shall apply only to beneficial owners of such interests, i.e. lenders, and therefore, shall not apply to:

3.1. Recipients of paid interests, which are not lenders.

Example 19: A Vietnamese company pays an interest to Thai Bank C. At the request of this bank, this interest is remitted to French bank P headquartered in Paris. In this case, the beneficial owner of the interest is Thai bank C, not French bank P. So, bank P is not entitled to request the application of the provisions of the Vietnam-France Agreement to this interest.

3.2. Interest arising in Vietnam and paid to a Vietnam-based permanent establishment of a resident of the Contracting State to an Agreement concluded with Vietnam.

3.3. Interest arising in Vietnam and paid to another Vietnamese company’s permanent establishment situated in the Contracting State to an Agreement concluded with Vietnam.

Example 20: Vietnamese bank V has a branch VC situated in State L, the Contracting State to an Agreement concluded with Vietnam. According to State L’s law, VC branch is regarded as a permanent establishment of bank V in that State. Branch VC grants a loan to a Vietnam-based company and receives an interest thereon. In this case, the provisions on taxation on interests in the Vietnam- L Agreement shall not be applied.

The above-said provisions on taxation on interest are included in the Article Interest (usually Article 11) of the Agreements.

VI. ROYALTIES

1. Definition of royalties

Under the Agreements, royalties mean amounts paid for the use of or the right to use:

1.1. Copyright of literary, artistic or scientific work including cinematographic films, photograph films or tapes used for radio or television broadcasting;

1.2. Patent;

1.3. Trademark;

1.4. Design, model, plan, secret formula or process;

1.5. Computer software;

1.6. Industrial, commercial or scientific equipment;

1.7. Information related to industrial, scientific or commercial experiences.

2. Determination of tax obligation

2.1. Under the Agreements, Vietnam is entitled to tax royalties arising in Vietnam and paid to a resident of the Contracting State to an Agreement concluded with Vietnam at a limit rate (usually not exceeding 10%), depending on each Agreement, provided that the recipient is the beneficial owner.

Royalties arising in Vietnam mean royalties borne and paid by any resident of Vietnam, including those borne and paid by the Vietnamese Government and local authorities or Vietnam-based permanent establishments or fixed places of foreign residents.

2.2. Where a resident of Vietnam receives a royalty arising in the Contracting State to an Agreement concluded with Vietnam, such Contracting State is entitled to impose income tax thereon as stipulated at Point 2.1 above and Vietnam is also entitled to tax this income in accordance with Vietnam’s tax law but, at the same time, Vietnam must apply methods for elimination of double taxation on this income (prescribed in Part C: Methods for elimination of double taxation in Vietnam of this Circular).

Example 21: A lubricant-making joint venture in Vietnam signs with a company of the Republic of Korea a contract which stipulates that this company transfers to the Vietnamese joint venture its lubricant-making formula for 20 years. When the Vietnamese joint venture pays the royalty to the ROK’s company, it must, according to Vietnam’s tax law, deduct 10% of the total of such royalty for remittance into the budget. However, under the Vietnam-ROK Agreement (Clause 2.a of Article 12: Royalties), this joint venture must make a deduction at 5% only, instead of 10%.

2.3. Where Vietnam’s tax law does not provide for the taxation on this type of income or provides for the taxation at a rate lower than that prescribed in the Agreements, the income earners shall fulfil the tax obligation prescribed by Vietnam’s tax law.

Example 22: Using example 21 above, but with the assumption that the Korean company contributes capital to the Vietnam-based joint-venture company with the right to use the lubricant-making formula for 20 years. Under the Vietnam-ROK Agreement (Clause 2.a of Article 12: Royalties), Vietnam is entitled to tax the royalty of the Korean company at the rate of 5% because the right to use the lubricant-making formula is converted into monetary capital. However, according to Vietnam’s laws, (Point 2, Article 81: Technology transfer and contribution of capital with technology, of Decree No 24/2000/ND-CP of July 31, 2000 detailing the implementation of the Law on Foreign Investment in Vietnam and Article 1 of Decree No. 27/2003/ND-CP of March 19, 2003 amending and supplementing a number of articles of Decree No. 24/2000/ND-CP of July 31, 2000), the Korean company is exempted from the tax.

3. Identification of beneficial owners

Under the Agreements, the provisions on taxation on royalties shall apply only to beneficial owners of royalties, i.e. persons having the right to own, use or exploit copyright, and, therefore, shall not apply to:

3.1. Recipients of paid royalties, which are not persons having the right to own, use or exploit copyright, or

3.2. Royalties arising in Vietnam and directly related to a Vietnam-based permanent establishment of the beneficial owner being a resident of the Contracting State to an Agreement concluded with Vietnam; or

3.3. Royalties arising in Vietnam and paid to another Vietnamese company’s permanent establishment situated in the Contracting State to an Agreement concluded with Vietnam.

Example 23: A Vietnam-based branch of a British tobacco company permits a Vietnamese company to use the formula and trademark of the British tobacco company in the Vietnamese company’s products on the condition that the branch inspects and monitors the use process. In this case, the royalty from the use of the formula and trademark of the British tobacco company is directly related to the branch. Because the branch is a Vietnam-based permanent establishment of the British tobacco company, under the Vietnam- Great Britain Agreement (Clause 4 of Article 12: Royalties), Vietnam is entitled to tax this income in the same manner applicable to business income (Article 7: Business profits, of the Vietnam-Great Britain Agreement).

The above-said provisions on taxation on royalties are included in the Article Royalties (usually Article 12) of the Agreements.

VII. INCOME FROM THE PROVISION OF TECHNICAL SERVICES

1. Definition of technical service charges

Under the Agreements, technical service charges mean payments in any forms made to any persons, other than employees of the payers, for any services of technical, managerial or consultancy nature.

2. Determination of tax obligation

2.1. Under the Agreements, Vietnam is entitled to tax technical service charges arising in Vietnam and paid to a resident of the Contracting State to an Agreement concluded with Vietnam at a limit rate (usually not exceeding 10%), depending on each Agreement, provided that the recipient is the beneficial owner.

Technical service charges arising in Vietnam mean payments borne and made in any forms by any resident of Vietnam, including those borne and paid by the Vietnamese Government and local authorities or Vietnam-based permanent establishments or fixed places of foreign residents.

Example 24: Company X, a resident of Vietnam, specializes in producing canned fruits. In order to expand its outlets to Europe, it hires company M in Germany to give legal advice on the procedures for opening a branch or finding a sale agent. This consultancy service is provided in Germany and company M has no permanent establishment in Vietnam.

In this case, when paying service charges to company M, company X must deduct an enterprise income tax at a rate not exceeding 7.5% according to the Vietnam-Germany Agreement (Clause 1.b of Article 12: Royalties and technical service charges).

2.2. Where a resident of Vietnam receives a technical service charge arising in the Contracting State to an Agreement concluded with Vietnam, such Contracting State is entitled to impose income tax thereon as stipulated at Point 2.1 above and Vietnam is also entitled to tax this income in accordance with Vietnam’s tax law but, at the same time, Vietnam must apply methods for elimination of double taxation on this income (prescribed in Part C: Methods for elimination of double taxation in Vietnam, of this Circular).

The above-said provisions on taxation on technical service charges are included in the Article Technical service charges (usually Article 13) of the Agreements.

VIII. INCOME FROM THE ALIENATION OF PROPERTY

1. Definition of income from the alienation of property

Income from the alienation of property means income in any forms from the sale or alienation (of the whole or part of) or exchange of the property and rights over the property, including also the case where the property is brought into a business establishment in exchange for the rights therein.

2. Determination of tax obligation

2.1. Income from the alienation of immovable property in Vietnam

Under the Agreements, Vietnam is entitled to tax income derived from the alienation of immovable property in Vietnam by a resident of the Contracting State to an Agreement concluded with Vietnam in accordance with Vietnam’s tax law.

Example 25: A French oil-exploiting firm transfers its right to exploit oil at a location in Vietnam’s sea, income derived therefrom shall be taxed in accordance with Vietnam’s law.

2.2. Income from the alienation of movable property being business property of a Vietnam-based permanent establishment

Under the Agreements, Vietnam is entitled to tax income earned from the alienation of business property by a Vietnam-based permanent establishment of a resident of the Contracting State to an Agreement concluded with Vietnam in accordance with Vietnam’s tax law.

Example 26: Bank branch C of State P (the Contracting State to an Agreement concluded with Vietnam) operates in Hanoi. In 2004, the branch terminated its operation and sold all equipment and property already used for its business purpose. Income from the above-said alienation must be declared for tax payment (after subtracting the residual value of the equipment and property) at the enterprise income tax rate of 28%.

2.3. Income from the alienation of ships and aircraft operated in international traffic

Under the Agreements, income from the alienation of ships and aircraft operated in international traffic (in line with the definition at Point 1, Section III, Part B: tax on incomes, of this Circular) and managed by international traffic enterprises of the Contracting State to an Agreement concluded with Vietnam shall not be taxed in Vietnam.

2.4. Income from the alienation of capital of foreign investors in foreign-invested enterprises

Most of the Agreements between Vietnam and foreign countries provide that Vietnam is entitled to collect income tax in cases where the foreign parties alienate their capital in enterprises operating under the Law on Foreign Investment and earn gains being the difference between the value of the alienation and the original value.

2.5. Other cases of alienation of property in Vietnam

Under the Agreements, income earned from the alienation of property other than the kinds of property stated at Points from 2.1 thru 2.4 in Vietnam by a resident of the Contracting State to an Agreement concluded with Vietnam shall not be taxed in Vietnam.

Example 27: A Chinese construction company brings machinery into Vietnam for the construction of a project for 3 months. After the time of construction, this company returns home and sells the above-said machinery in Vietnam. Under the Vietnam-China Agreement, this company has no permanent establishment in Vietnam (Clause 3.a of Article 5: Permanent establishment), so it shall not be taxed in Vietnam (Clause 6 of Article 13: Capital gains).

The above-said provisions on taxation on income from the alienation of property are included in the Article Income from the alienation of property (usually Article 13) of the Agreements.

IX. INCOME FROM INDEPENDENT PROFESSIONAL SERVICES

1. Definition of income from independent professional services

Under the Agreements, income from independent professional services means income earned by an individual who is a resident of the Contracting State to an Agreement concluded with Vietnam from independent activities of providing professional services such as scientific, literature, art, education or training services, particularly independent professional services of doctors, lawyers, engineers, architects, dentists, accountants and auditors.

Income from professional services does not include remuneration from employment (prescribed in the Article Income from dependent personal activities), directors’ fees (prescribed in the Article Directors’ fees), pensions (prescribed in the Article Pensions), government services (prescribed in the Article Income from government services), income of pupils and students (prescribed in the Article Income of students), teachers and professors (prescribed in the Article Income of professors, teachers and researchers), and independent performances of artistes and athletes (prescribed in the Article Income of artistes and athletes).

2. Determination of tax obligation

2.1. In cases where an individual, who is a resident of the Contracting State to an Agreement concluded with Vietnam is licensed to provide independent professional services and operates through a fixed place of business in Vietnam, that individual shall make income declaration and determination like business establishments liable to enterprise income tax in accordance with documents guiding the implementation of the enterprise income law.

The phrase “fixed place” refers to a place or an address of a habitual or stable nature within the territory of a nation, through which an individual provides professional services (for example, a medial counselling room, an architect’s or lawyer’s office, etc.). The principle for determination of a “fixed place” is similar to that for determination of a “permanent establishment” of an enterprise stated at Point 2.1.1.1, Section II, Part B of this Circular.

2.2. In cases where an individual, who is a resident of the Contracting State to an Agreement concluded with Vietnam, provides independent professional services through a fixed place in Vietnam without a business license, that individual shall make income declaration and determination in accordance with the regulations on personal income tax on high-income earners.

2.3. In cases where an individual, who is a resident of the Contracting State to an Agreement concluded with Vietnam, provides independent professional services without a fixed place in Vietnam but his/her presence in Vietnam lasts for 183 or more days in the taxable year or within 12 months counting from the date of arrival in Vietnam, depending on each Agreement, that individual shall make income declaration and determination in accordance with the regulations on the tax regime applicable to foreign individuals doing business or deriving income in Vietnam.

2.4. In cases where an individual, who is a resident of the Contracting State to an Agreement concluded with Vietnam, provides independent professional services not through a fixed place in Vietnam but his/her presence in Vietnam lasts for under 183 days in the taxable year, the Vietnamese tax authorities shall not tax their income from independent professional services.

2.5. Notwithstanding the provisions of Point 2.4 above, an individual providing independent services in Vietnam may also be taxed in Vietnam in cases where an Agreement provides that individuals providing independent services shall be obliged to pay tax in Vietnam on a certain level of income earned from the provision of such independent services for a given period of time (usually a fiscal year).

The above-said provisions on taxation on income from independent professional services are included in the Article Independent personal services (usually Article 14) of the Agreements.

X. INCOME FROM DEPENDENT PERSONAL SERVICES

1. Definition of dependent personal services

Under the Agreements, income from dependent personal services means income in the form of remuneration derived by a person who is a resident of a Contracting State to an Agreement concluded with Vietnam from his employment in Vietnam and vice versa. Income from dependent personal services does not include income of individuals in the capacity as independent professional practitioners (prescribed in the Article Independent professional services), members of enterprises’ directorates (prescribed in the Article Directors’ fees), artistes and athletes (prescribed in the Article Income of artistes and athletes), employees serving foreign governments (prescribed in the Article Income from government services), and remuneration in the form of pensions (prescribed in the Article on Pensions).

2. Determination of tax obligation

2.1. Under the Agreements, an individual, who is a resident of a Contracting State to an Agreement concluded with Vietnam, derives income from his/her employment in Vietnam, shall have to pay income tax in Vietnam in accordance with Vietnam’s current regulations on personal income tax.

Example 28: In 2003, Mr. A, a resident of France, worked for bank branch F, a Vietnam-based branch of a French bank, for 2 months. All of his salary and other income were paid by branch F. In the years preceding and following 2003, Mr. A was not present in Vietnam. In this case, Mr. A is obliged to pay personal income tax on the income he earns during the time of working in Vietnam in accordance with Vietnam’s current regulations on personal income tax.

2.2. If the above-said individual fully satisfies the following three conditions, his/her remuneration from the employment in Vietnam shall be exempt from income tax in Vietnam:

2.2.1. That individual is present in Vietnam for less than 183 days in a period of 12 months starting or ending within the taxable year concerned; and

2.2.2. The employer is not a resident of Vietnam, regardless of whether that remuneration is directly paid by the employer or through the employer’s representative; and

2.2.3. This remuneration is not borne and paid by the Vietnam-based permanent establishment set up by the employer.

Example 29: Japanese company N participates in setting up joint venture S specialized in the distribution of goods in Vietnam. In 2002, company N sent Mr. Z to Vietnam in the capacity as its representative to negotiate on a contract on company N’s supply of sale “know-how” to joint venture S for one month. In the years preceding and following the year 2002, Mr. Z was not present in Vietnam. All of his income and expenses were paid by company N. In this case, Mr. Z concurrently satisfies all the three conditions stated at Point 2.2 above, so he is exempt from personal income tax in Vietnam.

2.3. The term “employer” used at Point 2.2.2 refers to real employer. As usual, a person shall be regarded as real employer in the following cases:

2.3.1. That person has rights on the products and services created by the employee and bearing responsibility as well as risks for such labor; or

2.3.2. That person gives instructions and supplies working tools to the employee; or

2.3.3. That person is entitled to control and bears responsibility for the working place.

Example 30: Using example 29 above with the assumption that in 2004 Mr. Z visited Vietnam in the capacity as specialist of joint venture S to guide the application of the “know-how” for 3 months. In the years preceding and following the year 2004, Mr. Z was not present in Vietnam. In the spirit of assisting joint venture S, company N paid for all incomes and expenses of Mr. Z during his working time in Vietnam. In this case, in terms of form, Mr. Z concurrently satisfies all three conditions stated at Point 2.2 above, but, in essence, compared to real employer’s criteria, the real employer of Mr. Z during his working time in Vietnam is joint venture S, not company N. So, Mr. Z is not exempt from personal income tax in Vietnam.

2.4. Income earned by a Vietnamese being a resident of the Contracting State to an Agreement concluded with Vietnam not from his/her employment in Vietnam but from his/her employment overseas shall not be taxed in Vietnam.

2.5. Income earned by individuals employed aboard ships, boats or aircraft (crews) operated in international traffic by enterprises that are residents of, or have places of effective management in, Vietnam shall be taxed in Vietnam.

Example 31: Company S, a Vietnamese ocean shipping company, charters ships and foreign crews to operate on the China-Singapore international route. It is obliged to deduct personal income tax according to Vietnam’s laws from the salaries paid to individual crewmembers though these salaries constitute part of the ship charter costs.

The above-said provisions on taxation on income from dependent personal services are included in the Article Dependent personal services (usually Article 15) of the Agreements.

XI. DIRECTORS’ FEES

1. Definition of directors’ fees

Under the Agreements, directors’ fees mean incomes received in Vietnam by a person being a resident of the Contracting State to an Agreement concluded with Vietnam in the capacity as a member of Board of Directors, Managing Board of a company or as a senior manager of an enterprise being a resident of Vietnam; and vice versa. This income does not include salaries received by such members for other functions performed by them as employee, consultant or advisor, salaries of foreigners holding a post in Vietnam-based representative offices of foreign companies. These normal incomes shall be regarded as incomes from dependent personal services (prescribed in Section X: Income from dependent personal services, Part B of this Circular).

2. Determination of tax obligation

Under the Agreements, individuals who are residents of the Contracting State to an Agreement concluded with Vietnam receive remuneration in the capacity as members of Board of Directors, Managing Board or as senior managers of a company being a resident of Vietnam shall pay tax on such type of income in accordance with the regulations on income tax on high-income earners in Vietnam (regardless whether they are present in Vietnam or not).

Example 32: A resident of the Great Britain is a member of the Managing Board of a joint venture in Vietnam. In 2003, he worked in Vietnam for a total of 60 days and received remuneration in the capacity as a Managing Board member. Under the Vietnam-Great Britain Agreement and Vietnam’s regulations on income tax on high-income earners, that Briton shall have to pay income tax on his remuneration earned for his capacity as a Managing Board member at a rate of 25% of total income as applicable to non-residents of Vietnam.

The above-said provisions on taxation on directors’ salaries are included in the Article Directors’ fees (usually Article 16) of the Agreements.

XII. INCOME FROM PERFORMANCES OF ARTISTES AND ATHLETES

1. Definition of income from performances of artistes and athletes

Under the Agreements, income from performances in Vietnam by artistes and athletes means income from art or sport performances in Vietnam by artistes or athletes themselves, who are residents of the Contracting State to an Agreement concluded with Vietnam; and vice versa.

2. Determination of tax obligation

2.1. Notwithstanding the provisions of Section IX - Income from independent professional services and Section X - Income from dependent personal services, income earned by an individual, who is a resident of the Contracting State to an Agreement concluded with Vietnam, from his/her art, sport performance in Vietnam shall be taxed in accordance with Vietnam’s laws.

2.2. Notwithstanding the provisions of Section II - Business income, Section IX - Income from independent professional services and Section X - Income from dependent personal services, income from performances which is not paid to the performing individuals being residents of the Contracting State to an Agreement concluded with Vietnam but to other persons shall be taxed in Vietnam in accordance with Vietnam’s laws.

2.3. In cases where the art, sport performances carried on by an individual or a company that is a resident of the Contracting State to an Agreement concluded with Vietnam with the framework of a program of cultural exchanges between the governments of the two countries, income derived from the art or sport performance in Vietnam by such foreign individual or company shall be exempt from tax in Vietnam.

The above-said provisions on taxation on income of artistes and athletes are included in the Article Artistes and Athletes (usually Article 17) of the Agreements.

XIII. PENSIONS

1. Definition of pensions

Under the Agreement, pensions mean pensions received by a resident of the Contracting State to an Agreement concluded with Vietnam from his/her past employment in Vietnam; and vice versa. This income does not include pensions paid by the governments, local authorities of Vietnam and the Contracting State to an Agreement concluded with Vietnam because this income is regarded as income from Government services (prescribed in Section XIV: Income from Government services, Part B of this Circular).

2. Determination of tax obligation

2.1. Depending on each particular Agreement, pensions shall be taxed:

2.1.1. Only in the State of which the pension recipients are residents; or

2.1.2. Only in the State where pensions are paid; or

2.1.3. Both in the State of which the pension recipients are residents and in the State where the pensions arise, if the pension payers are residents of, or permanent establishments in, such States;

2.2. Notwithstanding the provisions of Point 2.1 above, pensions or other payments which are paid from the compulsory insurance regime of the Vietnamese State or local authorities shall be taxed only in Vietnam.

Example 33: During his/her work in Vietnam, an individual paid his social insurance premiums to Vietnam Social Insurance according to the general regulations on compulsory social insurance for individuals working in Vietnam. At his retirement, he came to live in the Great Britain and became a resident thereof. His pension, received from Vietnam Social Insurance, shall only be taxed in Vietnam.

The above-said provisions on taxation on pensions are included in the Article Pensions (usually Article 18) of the Agreements.

XIV. INCOME FROM GOVERNMENT

SERVICES

1. Definition of Government services

Under the Agreements, income from Government services means wages, salaries or pensions paid by the Government, local authorities of the Contracting State to an Agreement to an individual for the tasks performed for that Contracting State.

2. Determination of tax obligation

2.1. In cases where a foreigner sent by the Government of the Contracting State to an Agreement concluded with Vietnam to work in Vietnam for a Vietnam-based organization of that Government or for a program of economic, cultural co-operation or aid between the two States, his salary or wage paid by that foreign Government shall be exempt from income tax in Vietnam even though such person has become a resident of Vietnam for the purpose of performing such jobs.

2.2. Nevertheless, salaries or wages paid by the Government of the Contracting State to an Agreement concluded with Vietnam shall only be taxed in Vietnam if they are paid to an individual being a resident of Vietnam for the tasks performed for that foreign Government in Vietnam and this individual:

2.2.1. Holds the Vietnamese nationality; or

2.2.2. Was a resident of Vietnam before performing the tasks in Vietnam for the foreign Government.

2.3. A pension paid to an individual from a fund set up by the Vietnamese State or local authorities or paid directly by the Vietnamese State or local authorities shall only be taxed in Vietnam, unless the above-said individual is concurrently a resident of the Contracting State to an Agreement concluded with Vietnam and holds the nationality of that Contracting State. In this case, the pension of above-said individual shall be exempt from tax in Vietnam.

2.4. Notwithstanding the provisions of Points from 2.1 thru 2.3 above, salaries, wages or pensions paid by a foreign Government to an individual for his/her participation in the foreign Government’s business activities in Vietnam, such as activities of railway transport enterprises, postal enterprises or State performance companies, shall be taxed according to regulations, depending on each case as stated in Section X - Income from Dependent personal services, Section XI- Directors’ fees, Section XII- Income of Artistes and athletes, and Section XIII- Pensions.

The above-said provisions on taxation on income from Government services are included in the Article Government services (usually Article 19) of the Agreements.

XV. INCOME OF STUDENTS AND APPRENTICES

1. Definition of income of students, apprentices

Under the Agreements, income of students and apprentices in Vietnam in service of their education, study or job training in Vietnam, falling within the scope of regulation of this Article, only includes:

1.1. Income received from overseas sources for the purpose of their learning and maintenance in Vietnam.

1.2. Income received from their employment in Vietnam directly related to the education, study or job training in Vietnam (in the case it is specified in the Agreement). In some Agreements, only a certain level of this income is exempt from tax.

2. Determination of tax obligation

If immediately before visiting Vietnam for education, study or job training, foreign students or apprentices were residents of the Contracting State to an Agreement concluded with Vietnam, they shall be exempt from income tax in Vietnam on the types of income stated at Points 1.1 and 1.2 above.

Example 34: A student, a resident of China, comes to Vietnam to study folk arts for 4 years. During the time of study in Vietnam, he receives a monthly scholarship of VND 800,000 from China, a monthly income of USD 50 from teaching Chinese at a school in Hanoi and a total annual income of USD 2,500 for participation in Vietnamese folk art performances. Under the Vietnam- China Agreement (Article 20: Students, apprentices and interns), this student shall be exempt from income tax on the scholarship and income from art performance within the limit of USD 2,000; and pay tax on income from teaching and the amount in excess of USD 2,000 earned from performances.

The above-said provisions on taxation on income of students and apprentices are included in the Article Students and apprentices (usually Article 20) of the Agreements.

XVI. INCOME OF TEACHERS, PROFESSORS, AND RESEARCHERS

Some Agreements specifically provide for the taxation of income earned by foreign teachers, professors and researchers from teaching, lecturing, researching activities in Vietnam.

Under the provisions of this Article:

1. Foreign teachers, professors or researchers, if they were residents of the Contracting State to an Agreement concluded with Vietnam immediately before visiting Vietnam for teaching, lecturing or researching activities, shall be exempt from tax on remuneration they earn from such teaching, lecturing or researching activities for 2 years counting from the first day such persons arrive in Vietnam to teach, give lecture or conduct research at the universities or educational establishments with the approval of the Vietnamese Government.

2. The above-said tax exemption shall not apply to teaching or researching activities for the purposes of an individual or a private organization.

The above-said provisions on taxation on income of teachers, professors and researchers are included in the Article Teachers, professors and researchers (usually Article 21) of the Agreements.

XVII. OTHER INCOME

1. Definition of other income

Under the Agreements, other income means all other incomes not yet mentioned in the above-said articles, such as income from lottery win, amounts won from gambling at casinos, financial supports from familial or marital obligations, etc.

2. Determination of tax obligation

2.1. Under the Agreements, a resident of the Contracting State to an Agreement concluded with Vietnam, who derive other income from Vietnam, shall have to pay tax in accordance with Vietnam’s tax law. Nevertheless, in some Agreements (for example, the Vietnam- France Agreement, the Vietnam-Great Britain Agreement), Vietnam commits to grant tax exemption for other income in this case.

Example 35: Mr. H is a resident of China and Mr. P is a resident of France. During a two-week tour in Vietnam, both of them won a lottery prize of VND 20 million in Hanoi. According to Vietnam’s personal income tax regulations, this type of income is irregular, so both of them have to pay tax in Vietnam on this prize. Under the Vietnam-China Agreement (Clause 2 of Article 22: Other income), Vietnam may tax Mr H’s income. Under the Vietnam-France Agreement (Clause 1 of Article 20: Other income), Mr. P’s income is exempt from tax in Vietnam.

2.2. In cases where other income is related to a Vietnam-based permanent establishment of a resident of the Contracting State to an Agreement concluded with Vietnam, Vietnam is entitled to tax such income in accordance with the provisions of Vietnam’s tax law and the provisions of Section II- Business income and Section IX - Income from independent professional services, as the case may be.

Example 36: Bank branch V, a Vietnam-based branch of Japanese bank S, purchases a car of a company in State X and wins a sale promotion prize worth USD 10,000. This car is used for the business purpose of branch V. Notwithstanding the internal policy of bank S, which says that such income must be regarded as income of the headquarters and transferred into bank S’s account in Japan, the income being this prize shall still be regarded as actually related to branch V, a Vietnam-based permanent establishment of bank S in accordance with the Vietnam-Japan Agreement (Clause 2 of Article 21), and, therefore, Vietnam is entitled to tax this income in accordance with the provisions of Vietnam’s tax law and the provisions of Section II- Business income (Article 7 of the Vietnam-Japan Agreement).

The above-said provisions on taxation on other income are included in the Article Other income (usually Article 22) of the Agreements.

C. METHODS FOR ELIMINATION OF DOUBLE TAXATION IN VIETNAM

Under the Agreements, when a taxpayer being a resident of Vietnam, derives an income from the Contracting State to an Agreement concluded with Vietnam and has paid tax in that State (under the provisions of the Agreement and that State’s laws), Vietnam may still tax such income but, at the same time, it is also obliged to apply methods for elimination of double taxation so that that taxpayer does not have to pay double tax.

Depending on each concluded Agreement, Vietnam may apply one or a combination of the following methods for elimination of double taxation:

I. TAX DEDUCTION METHOD

In cases where a resident of Vietnam derives income from and has paid tax in the Contracting State to an Agreement concluded with Vietnam, if in that Agreement Vietnam commits to apply the tax deduction method, then, when this resident makes income tax declaration in Vietnam, such income shall be included in his/her taxable income in Vietnam in accordance with Vietnam’s tax law and the tax amount already paid in the Contracting State shall be deducted from the tax amount payable in Vietnam. Nevertheless, in all cases, the deducted tax amount shall not exceed the tax amount payable in Vietnam, which is computed on the income derived in the Contracting State in accordance with Vietnam’s tax law.

Example 37: Mr A is a national of State M and a resident of Vietnam in 2005. In 2005 Mr A earns an income of VND 40,000,000 from his employment for 8 months in Vietnam and an income of VND 80,000,000 from his employment for 4 months in State M. Under the Vietnam- M Agreement (Clause 1 of Article 15: Dependent personal services), Mr A must pay tax in State M on his income derived from this State at the rate (20%) prescribed by the tax law of this State. It is assumed that Mr. A has no other income apart from the above-said incomes. In this case, in Vietnam Mr A’s tax declaration and payment and deduction of the tax already paid in State M shall be as follows:

- Determination of Mr A’s taxable income (according to Vietnam’s tax law):

(VND 40,000,000 + VND 80,000,000) : 12 months = VND 10,000,000/month

- Determination of Mr A’s income tax (according to Vietnam’s tax law):

(VND 10,000,000 - VND 8,000,000) x 10% x 12 months = VND 2,400,000

- The tax amount paid in M (according to M’s tax law):

VND 80,000,000 x 20% = VND 16,000,000

- Distribution of the tax amount calculated according to Vietnam’s law on the income derived in State M:

VND 2,400,000 : (VND 40 million + VND 80 million) x VND 80 million = VND 1,600,000
So, Mr A is only entitled to the deduction of VND 1,600,000 from the total tax of VND 16,000,000 already paid on VND 80,000,000 derived from State M. Therefore, he has to further pay in Vietnam a tax of VND 800,000 (VND 2,400,000 - VND 1,600,000).

Example 38: Company V of Vietnam has a permanent establishment in Laos. In 2004, this permanent establishment was determined to have an income of USD 100,000. Under the Vietnam-Laos Agreement (Clause 1 of Article 7: Enterprise profits), under Laos’s tax law, company V was obliged to pay income tax (at the rate of 25%) on this permanent establishment’s determined income. In this case, in Vietnam company V’s tax declaration and payment and deduction of the tax already paid in Laos shall be as follows:

- Determination of the tax amount paid in Laos (according to Laos’s tax law):

USD 100,000 x 25% = USD 25,000

- Determination of the tax amount payable in Vietnam (according to Vietnam’s tax law):

USD 100,000 x 28% = USD 28,000

- The tax amount further payable in Vietnam:

USD 28,000 - USD 25,000 = USD 3,000

Example 39: Using example 38 above, with the assumption that company V is a joint- venture eligible for an enterprise income tax rate of 20% in Vietnam. Then, in Vietnam company V shall make tax declaration and payment and enjoy a deduction of the tax already paid in Laos as follows:

- Determination of the tax amount paid in Laos (according to Laos’s tax law):

USD 100,000 x 25% = USD 25,000

- Determination of the tax amount payable in Vietnam (according to Vietnam’s tax law):

USD 100,000 x 20% = USD 20,000

- The maximum tax amount to be deductible in Vietnam: USD 20,000

In this case, company X shall enjoy a deduction of USD 20,000 from the total tax amount of USD 25,000 already paid in Laos. The difference of USD 5,000 (USD 25,000 - USD 20,000) must not be deducted from the income tax on company V’s derived domestically income (if any).

II. METHOD OF DEDUCTION OF DEEMED TAX

In cases where a resident of Vietnam derives income from and must pay tax in the Contracting State to an Agreement concluded with Vietnam (a reduced or exempted tax as a special preference), if, in that Agreement Vietnam commits to apply the method for deduction of deemed tax, when this resident makes income tax declaration in Vietnam, such income shall be included in his/her taxable income in Vietnam in accordance with Vietnam’s tax law and the deemed tax amount shall be deducted from the tax amount payable in Vietnam. Nevertheless, in all cases, the deductible deemed tax amount shall not exceed the tax amount payable in Vietnam, which is computed on the income derived from abroad in accordance with Vietnam’s tax law.

The deemed tax amount is the amount which should have been paid by a resident of Vietnam in the Contracting State to an Agreement concluded with Vietnam on the income derived from that Contracting State, which, however, according to that Contracting State’s law, is exempted or reduced as a special preference.

Example 40: Vietnamese company Q has a permanent establishment in Uzbekistan. In 2004, this permanent establishment was determined to have an income of USD 100,000. According to the tax law of Uzbekistan, this income was exempted from tax as a special preference (in case of non-exemption, it will be taxed at the rate of 33%). Company Q was obliged to pay tax in Vietnam at the rate of 28%. Under the Vietnam-Uzbekistan Agreement (Clause 5 of Article 24: Methods for elimination of double taxation), Vietnam is obliged to deduct the deemed tax (i.e. the tax amount which should have been paid but exempted in Uzbekistan). In this case, in Vietnam company Q’s tax declaration and payment and deduction of the deemed tax amount shall be as follows:

- Determination of the deemed tax amount in Uzbekistan (according to Uzbekistan’ tax law):

USD 100,000 x 33% = USD 33,000

- Determination of the tax amount payable in Vietnam (according to Vietnam’s tax law):

USD 100,000 x 28% = USD 28,000

So, company Q shall be regarded as having paid, though in fact being exempted from paying, USD 28,000 (out of a total of USD 33,000 computed according to Uzbekixtan’s tax law before the preference is granted) and have this tax amount deducted from the tax amount payable in Vietnam (meaning that it does not have to pay tax in Vietnam).

III. METHOD OF DEDUCTION OF INDIRECT TAX

1. In cases where a resident of Vietnam derives an income from the Contracting State to an Agreement concluded with Vietnam, for which corporate income tax has been paid before it is divided to that resident, if in the Agreement Vietnam commits to apply the method for deduction of indirect tax, in making income tax declaration in Vietnam, such income shall be included in the taxable income in Vietnam in accordance with Vietnam’s tax law and the indirect tax amount already paid in the Contracting State shall be deducted from the tax amount payable in Vietnam. Nevertheless, in all cases, the deductible tax amount shall not exceed the tax amount payable in Vietnam, which is computed on the income derived from abroad in accordance with Vietnam’s tax law.

The deductible indirect tax amount is the tax amount already paid by a joint-stock company being a resident of the Contracting State to an Agreement concluded with Vietnam in that Contracting State in the form of corporate income tax before the dividend is divided to a resident of Vietnam, provided that the resident of Vietnam directly controls a minimum percentage (10%) of the voting right in the joint-stock company.

Example 41: Vietnamese company V invests USD 10,000,000 (equivalent to 20% of the equity) in company N of the Russian Federation. In 2003, company N earned an income of USD 100,000 and had to pay tax according to the tax law of the Russian Federation (at the rate of 30%). The after-tax profit of company N was divided to company V according to its share percentage and taxed in the Russian Federation at the rate of 10% (Clause 2.a of Article 10: Dividends, the Vietnam-Russian Federation Agreement). Company V was obliged to pay tax according to Vietnam’s tax law at the rate of 28%. In this case, company V’s tax declaration and payment and deduction of the indirect tax in Vietnam shall be as follows:

- The pre-tax profit earned by Vietnamese company V out of the total profit of company N in the Russian Federation is:

USD 100,000 x 20% = USD 20,000

- The enterprise income tax amount already paid by company N in the Russian Federation on the above-said profit of company V according to the Russian Federation’s tax law is:

USD 20,000 x 30% = USD 6,000

- The after-tax dividend divided to company V is:

USD 20,000 - USD 6,000 = USD 14,000

- The tax amount payable by company V in the Russian Federation on its dividend divided under the Vietnam-Russian Federation Agreement is:

USD 14,000 x 10% = USD 1,400

- The total tax amount payable by company V in the Russian Federation (including the direct tax paid by company V on its dividend and the indirect tax paid by company N, which has investment capital of company V, on its income) is:

USD 1,400 + USD 6,000 = USD 7,400

- The tax amount payable by company V in Vietnam according to Vietnam’s tax law is:

USD 20,000 x 28% = USD 5,600

In this case, company V shall enjoy a maximum deduction of USD 5,600 out of the total of USD 7,400 already paid in the Russian Federation. The difference of USD 1,800 (USD 7,400 - USD 5,600) is not allowed to be deducted from the tax on the domestic income of company V (if any).

2. Notwithstanding the provision above, under which Vietnam shall apply the method of deduction of indirect tax only when it so commits in the Agreements, if, according to Vietnam’s laws, incomes derived from abroad by residents of Vietnam enjoy deduction of indirect tax, this provision is still implemented.

Example 42: Using example 41 above with the assumption that company N’s investment in the Russian Federation is an overseas direct investment project of company V according to Vietnam’s laws (the Government’s Decree No. 22/1999/ND-CP of April 14, 1999 stipulating overseas investment of Vietnamese enterprises), even when the investment percentage of company V accounts for less than 10% of the equity of company N, the methods of deduction of indirect tax shall still be applied (Section 2, Part II of the Finance Ministry’s Circular No. 97/2002/TT-BTC of October 24, 2002 guiding the performance of the tax obligations by enterprises making overseas investment), though it is not so prescribed in the Vietnam-Russian Federation Agreement (Clause 2 of Article 23: Methods for elimination of double taxation).

The above-said provisions on methods for elimination of double taxation are included in the Article Methods for elimination of double taxation (usually Article 23) of the Agreements.

Notwithstanding the above-said provisions on methods for elimination of double taxation, if, according to the provisions of an Agreement, incomes derived from abroad by residents of Vietnam are exempt from tax in Vietnam, these incomes shall be exempt from tax and the tax amounts already paid overseas shall not be deducted (meaning that it shall be taxed only once and it is not necessary to apply methods for elimination of double taxation), like scholarships of foreign students and apprentices during the time of their study in Vietnam (Section XV: Incomes of students and apprentices, Part B of this Circular).

D. PROVISIONS ON PROCEDURES FOR IMPLEMENTATION OF THE AGREEMENTS

I. PROCEDURES FOR DEDUCTION OF TAX PAID ABROAD FROM TAX PAYABLE IN VIETNAM

Individuals and organizations being residents of Vietnam (hereinafter referred to as taxpayers), in order to have deductions for tax amounts paid (or deemed to have been paid) in the Contracting State to an Agreement concluded with Vietnam, as provided in Part C: Methods for Elimination of double taxation in Vietnam of this Circular, should complete the following procedures:

1. Taxpayers send dossiers of application for deduction of the tax amounts paid (or deemed to have been paid) abroad from their tax amounts payable in Vietnam to the municipal/provincial tax authorities where they register their tax payment. Such a dossier consists of:

1.1. An application for tax deduction under an Agreement (made according to a set form), containing information on the transaction related to the tax amount paid abroad applied for deduction from the tax amount payable in Vietnam falling with the scope of regulation of the Agreement.

If, for force majeure reasons, the applicant fails to supply sufficient information or documents as required by this Circular, he/she should give specific explanations in this document.

1.2. Other documents, depending on the requested deduction form. Specifically:

1.2.1. In case of direct deduction

a/ A copy of the income tax payment declaration in a foreign country;

b/ A copy of the tax payment receipt in a foreign country; and

c/ The original certification by the foreign tax authorities of the paid tax.

1.2.2. In case of deduction of deemed tax

a/ A copy of the income tax payment declaration in a foreign country;

b/ A copy of the business registration certificate or legal documents certifying business activities in a foreign country; and

c/ A letter of certification by the foreign tax authorities of the tax already exempted or reduced and of the compliance of the application for deduction of the deemed tax with the Agreement and the law of the Contracting State concerned.

1.2.3. In case of indirect deduction

a/ Legal documents proving the relationship and the capital contribution percentage of the person applying for deduction;

b/ A copy of the income tax declaration in a foreign country, which was made by the dividend-dividing company to which the person contributes capital;

c/ A copy of the declaration of the tax deducted at source on the divided dividends; and

d/ The certification by the foreign tax authorities of the tax paid on the divided dividends and the corporate income tax already paid before the dividends are divided.

2. On the basis of the dossiers, the tax authorities shall consider and settle the tax deduction in accordance with the Agreements and the guidance of this Circular within 30 working days as from the time of receipt of complete dossiers stated at Point 1 above. The time limit of 30 working days does not include the time for dossier supplementation and explanation.

II. PROCEDURES FOR TAX EXEMPTION, REDUCTION AND REFUND IN VIETNAM FOR INDIVIDUALS AND ORGANIZATIONS THAT ARE FOREIGN RESIDENTS

1. In order to enjoy tax exemption and reduction, even in the cases of tax refund in the form of subtraction from the arising tax amounts payable into the budget in the subsequent period in accordance with an Agreement, taxpayers must send dossiers of application for tax exemption or reduction under an Agreement to the municipal/provincial tax authorities where they register their tax payment. A dossier of application for tax exemption or reduction under an Agreement consists of:

1.1. For assorted types of income (excluding income from international traffic)

1.1.1. The application for tax exemption or reduction under an Agreement (made according to a set form), containing information on the transaction related to the income applied for tax exemption or reduction falling within the scope of regulation of an Agreement;

If, for force majeure reasons, the applicant fails to supply sufficient information or documents as required by this Circular, he/she should give specific explanations in this document.

1.1.2. A residence certificate issued by the tax authorities of the country of residence (clearly indicating the resident in which taxable year);

1.1.3. Copy(ies) of the business registration certificate and/or the tax registration certificate issued by the country of residence in the case of business establishments; copies of the business registration certificate and/or the professional practice license, the tax registration certificate issued by the country of residence and the passport used for the exit from and entry into Vietnam in the case of individuals engaged in independent services. Copies of the labor contract and passport used for the exit from and entry into Vietnam in the case of individuals engaged in dependent personal services;

1.1.4. Copies of the economic contract, service provision contract, agency contract, consignment contract, technology transfer contract, or the labor contract signed with a Vietnamese organization or individual, the certificate of bank deposit in Vietnam, certificate of capital contribution to a company in Vietnam (depending on the type of income in each particular case);

1.1.5. Copies of the tax payment receipt and the written certification by the State treasury of the place where the organization or individual paid tax of the paid tax, made according to the certification form prescribed in the Finance Ministry’s Circular No. 68/2001/TT-BTC of August 24, 2001 (if tax was already paid). If the treasury fails to specify tax amounts paid by each taxpayer, the taxpayers shall request the Tax Department to certify the tax amount requested for exemption or reduction out of the total tax amount already certified by the treasury;

1.1.6. Certification by the contract-signing Vietnamese individual or organization of the term under the contract and the actual time spent in Vietnam.

1.2. For income from international traffic

1.2.1. In cases where taxpayers have not yet received tax exemption or reduction decisions of the tax authorities, a dossier of application for tax exemption or reduction under an Agreement shall consist of:

a/ The application and documents stated at Point 1.1 above; and

b/ Documents evidencing the direct management by the enterprise of the transport means, such as a duplicate or copy, with the certification of the lawfully designated representative in Vietnam, of the transport means ownership registration paper (in the case where the enterprise is the owner) or the contract on the charter of, or transfer of the right to use, the transport means (in the case where the enterprise charters the transport means or is assigned the right to use it).

For transport means calling at a Vietnamese port, enterprises may use the certifications of the port management authorities or the port exit/entry permits as substitutes for documents on management of transport means.

In cases where enterprises carry on activities of partnership, swapping or space chartering, bareboat chartering, etc., they should additionally supply relevant documents (such as the contract on partnership for joint operation and management of transport means, contract on space swapping, contract on bareboat charter, etc.).

In cases where the above said contract contains many provisions specific to business activities, enterprises shall not have to send copies of the whole contract but only the extracts containing relevant provisions sufficient for the determination of the means manager, conditions and turnover for application of an Agreement, such as the ship’s name, transport route, norm on the space to be exploited, the chartering term, the contract’s value, the statute of limitations for performance, etc, and

c/ The list of the enterprise’s incomes from international traffic arising in the taxable year or period (made according to a set form).

Dossiers of application for enterprise income tax exemption or reduction for international traffic shall be considered based on the amounts actually arising in the whole year, starting from January 1 to December 31 (for enterprises operating in Vietnam in the whole calendar year) or in each taxable period (for enterprises operating in Vietnam for less than 12 months in a calendar year).

1.2.2. In cases where taxpayers have received tax exemption or reduction decisions of the tax authorities for the preceding taxable year or period, if their business state sees no change, dossiers of application for tax exemption or reduction under an Agreement for the subsequent taxable year or period shall each consist of:

a/ The application for tax exemption or reduction under an Agreement (made according to a set form), clearly indicating the business state in the new taxable year or period;

b/ A residence certificate issued by the tax authorities of the country of residence (clearly indicating the resident in which taxable year);

c/ The list of incomes from international traffic arising in the year or period.

If the business state of a taxpayer sees any changes such as in business registration, transport means ownership or management, etc., the taxpayer shall have to supply the relevant papers as prescribed at Point 1.2.1 above.

1.2.3. Procedures for temporary exemption and reduction with regard to income from international traffic

In cases where taxpayers habitually operate in Vietnam for 12 or more consecutive months, they may submit dossiers of application for temporary exemption or reduction for the whole taxable year or period concerned with regard to turnover from international traffic with the transport means already determined to be directly managed by the taxpayers. Such a dossier shall consist of:

a/ The application for tax exemption or reduction under an Agreement (made according to a set form), clearly stating the request for temporary tax exemption or reduction;

b/ The residence certificate issued by the tax authorities of the country of which the person is a resident (of the current taxable year or the taxable year preceding the year for which temporary tax exemption or reduction is applied under an Agreement);

c/ Copy(ies) of the business registration certificate and/or tax registration certificate issued by the country of residence;

d/ Documents evidencing the direct management of the transport means by the enterprise (as stipulated at Point 1.2.1 above);

e/ The contract on, or written certification by the agent or lawful representative in Vietnam of, his/her/its representation for the enterprise in making tax declaration and payment (including also the payment of tax arrears, if any).

Within 5 working days as from the expiration of the time limit for temporary tax exemption or reduction, taxpayers shall have to submit complete dossiers, depending on each case prescribed at Points 1.2.1 and 1.2.2 above, to the tax authorities for issuance of official decisions on the tax amounts exempted or reduced under an Agreement.

Example 43: Shipping company A, a shipping company operating on fixed routes (of a Contracting State to an Agreement concluded with Vietnam) makes a plan to operate along the Hai Phong - Singapore transportation route with ships A1 and A2 directly managed by the company. At the same time, company A has a two-year contract on swapping 50 TEU aboard ship A2 for 50 TEU aboard ship B1 of company B. Assuming that shipping company A signs a two-year agency contract with a Vietnamese enterprise.

Shipping company A may make an application (enclosed with a dossier without the income list) to the Tax Department for issuance of an official dispatch guiding the payment of freight tax at a rate exclusive of enterprise income tax on the turnover earned from the issuance of transport documents for cargoes transported aboard ships A1, A2 and B1 in the year. On January 5 of the subsequent year, the shipping company is obliged to make a list of incomes from international traffic and send it to the tax authorities for issuance of a tax exemption or reduction decision under an Agreement (covering both the temporarily exempted or reduced tax and the newly arising tax (if any)).

Enterprises shall be obliged to keep documents (including also documents, transport contract, ship charter contract, freight receipt, agency contract and papers exchanged between agent and transport enterprise. etc.) to evidence their income declaration and the correct application of an Agreement in service of the tax authorities’ examination and inspection, when necessary.

1.3. The tax authorities shall base themselves on the dossiers of application for tax exemption or reduction as well as the specific articles of each Agreement to consider and decide within 30 working days as from the date of receipt of complete dossiers stipulated at Points 1.1 and 1.2 above. The time limit of 30 working days does not include the time for dossier supplementation and explanation. Particularly for the cases of tax exemption or reduction for income from international traffic stipulated at Point 1.2.3, within 15 working days as from the date of receipt of complete dossiers, the tax authorities shall issue tax exemption or reduction notices.

2. Tax refunds directly from the budget

2.1. In cases where taxpayers have paid tax into the budget and wish to receive direct refunds rather than subtractions from tax amounts arising in the subsequent period, the tax refund applicants shall send dossiers to the General Department of Taxation for processing tax refund procedures. A tax refund dossier shall consists of:

2.1.1. An application for tax refund (made according to a set form), containing information on transactions related to incomes eligible for tax exemption or reduction and the tax amount requested to be directly refunded from the budget falling within the scope of regulation of an Agreement.

If, for force majeure reasons, the applicant fails to supply sufficient information or documents as required by this Circular, he/she should give specific explanations in this document.

2.1.2. A residence certificate issued by the tax authorities of the country of residence (it must indicate the resident in which taxable year);

2.1.3. Copy(ies) of the business registration certificate and/or the tax registration certificate issued by the country of residence in the case of business establishments; copies of the business registration certificate and/or the professional practice license, the tax registration certificate issued by the country of residence and the passport used for the exit from and entry into Vietnam in the case of individuals engaged in independent services. Copies of the labor contract and passport used for the exit from and entry into Vietnam in the case of individuals engaged in dependent personal services;

2.1.4. Copies of the economic contract, service provision contract, agency contract, consignment contract, technology transfer contract, or the labor contract signed with a Vietnamese organization or individual, the certificate of certificate of bank deposit in Vietnam, certificate of capital contribution to a company in Vietnam (depending on the type of income in each particular case);

2.1.5. Copies of the tax payment receipt and the written certification by the State treasury of the place where the organization or individual paid tax of the paid tax (made according to the certification form prescribed in the Finance Ministry’s Circular No. 68/2001/TT-BTC of August 24, 2001). If the treasury fails to specify tax amounts paid by each taxpayer, the taxpayers shall request the Tax Department to certify the tax amount requested to be refunded out of the total tax amount already certified by the treasury;

2.1.6. The written certification by the contract-signing Vietnamese individual or organization of the actual time of operation under the contract.

2.2. The General Department of Taxation shall check dossiers and propose the Finance Ministry to issue tax refund decisions within 60 working days as from the date of receipt of complete dossiers of application for tax refund. The time limit of 60 days does not include the time for dossier supplementation and explanation.

2.3. On the basis of the Finance Ministry’s tax refund decisions, the State Budget Department shall complete procedures for tax refund. In cases where tax must be refunded in a foreign currency or the refunded tax must be transferred into an overseas account as requested by taxpayers, the State Budget Department shall complete the payment procedures according to the current regime on spending of the State budget in foreign currencies.

III. PROCEDURES FOR TAX EXEMPTION AND REDUCTION IN VIETNAM FOR FOREIGN INDIVIDUALS BEING RESIDENTS OF VIETNAM

For individuals who are residents of Vietnam and enjoy tax exemption or reduction for incomes stipulated in the articles on income from Government services, income of students and apprentices and income of teachers, professors and researchers (stated in Section XIV: Income from Government services, Section XV: Income of students and apprentices, and Section XVI: Income of teachers, professors and researchers, Part B of this Circular), the tax exemption and reduction procedures shall be as follows:

1. Tax exemption or reduction applicants shall send dossiers to municipal/provincial Tax Departments where they register their tax payment. A dossier shall consist of:

1.1. The application for tax exemption or reduction under an Agreement (made according to a set form), containing information on the transaction related to the income applied for tax exemption or reduction falling within the scope of regulation of an Agreement;

If, for force majeure reasons, the applicant fails to supply sufficient information or documents as required by this Circular, he/she should give specific explanations in this document.

1.2. A residence certificate issued by the tax authorities of the country of which the applicant for tax exemption or reduction under an Agreement was a resident immediately before coming to Vietnam.

1.3. Documents evidencing the nature of the income being remuneration or pension paid by a foreign Government, money for the study and maintenance in the case of students or apprentices, income paid for teaching, researching activities (such as labor contract, recruitment decision, etc.).

2. The tax authorities shall base themselves on the dossiers of application for tax exemption or reduction as well as the specific articles of each Agreement to consider and decide within 30 working days as from the date of receipt of complete dossiers stipulated at Point 1 above. The time limit of 30 working days does not include the time for dossier supplementation and explanation.

IV. PROCEDURES FOR CONFIRMATION OF TAX PAID IN VIETNAM FOR FOREIGN RESIDENTS

If residents of the Contracting State to an Agreement concluded with Vietnam, who are liable to income tax in Vietnam under the Agreement and Vietnam’s laws, wish to obtain confirmation of the tax amounts paid in Vietnam for deduction from the tax amounts payable in the country of residence, they should complete the following procedures:

1. In cases where taxpayers applying for confirmation of the tax actually paid in Vietnam send dossiers of application to the Tax Departments of the provinces or centrally run cities where they register their tax payment for processing of confirmation procedures, such a dossier shall consist of:

1.1. The application for confirmation of the tax actually paid in Vietnam (made according to a set form), containing information on the transaction related to the taxable income and the tax arising from such transaction falling within the scope of regulation of an Agreement;

If, for force majeure reasons, the applicant fails to supply sufficient information or documents as required by this Circular, he/she should give specific explanations in this document.

1.2. Copies of the tax payment receipt and the written certification by the State treasury where the tax is paid (made according to the certification form prescribed in the Finance Ministry’s Circular No. 68/2001/TT-BTC of August 24, 2001) in the case where the tax was already paid in Vietnam. If the treasury’s confirmation fails to specify the tax amounts paid by each taxpayer, the taxpayers shall request the Tax Department to confirm the tax amount requested to be exempted or reduced out of the total tax amount already confirmed by the treasury;

1.3. A residence certificate issued by the tax authorities of the country of residence (clearly indicating the resident in which taxable year).

Within 15 working days after the date of receipt of complete dossiers, the Tax Departments where the applicants register tax payment shall have to issue written confirmations of the paid tax amounts (made according to a set form). The time limit of 15 working days does not include the time for dossier supplementation and explanation.

2. In cases where the applicants for confirmation of the tax amounts which arise in Vietnam but have not been paid for reason of enjoyment of tax preference and are regarded as paid tax amounts for deductions from the deemed tax amounts in the country of residence send dossiers of application to the General Department of Taxation for processing of confirmation procedures, such a dossier shall consist of:

2.1. The application for confirmation of the tax amount arising in Vietnam (made according to a set form), containing information on the transaction related to the taxable income and the arising tax amount and tax preferences for such transaction falling within the scope of regulation of an Agreement;

If, for force majeure reasons, the applicant fails to supply sufficient information or documents as required by this Circular, he/she should give specific explanations in this document.

2.2. A residence certificate issued by the tax authorities of the country of residence (clearly indicating the resident in which taxable year).

2.3. Copies of documents evidencing the state of business and investment, income tax-related preferences enjoyed in Vietnam, such as business license, investment license, share ownership certificate, etc. in Vietnam; where a taxpayer determines by himself/herself the conditions for enjoyment of tax preferences, a copy of the income tax declaration or income tax settlement report (including also enclosed appendices) is required.

Within 15 working days after the date of receipt of complete dossiers, the General Department of Taxation shall have to confirm the tax amounts which arise in Vietnam but must not be paid due to tax preferences granted to the applicants. The time limit of 15 working days does not include the time for dossier supplementation and explanation.

V. PROCEDURE FOR CONFIRMATION ON RESIDENTIAL STATUS OF VIETNAM

1. Organizations and individuals that apply for confirmation of their residential status in Vietnam under an Agreement shall complete the following procedures:

1.1. The persons being taxpayers shall submit applications (made according to a set form) to the municipal/provincial Tax Departments where they register their tax payment.

1.2. For the persons that are not tax declarers and payers:

1.2.1. The application (as prescribed at Point 1.1 above);

1.2.2. The confirmation of the managing agency or local administration of the place of residence or civil status registration, for individuals, or the establishment registration paper, for organizations (for example, agricultural cooperatives, cooperation teams);

1.2.3. The confirmation of the income-paying organization (if any). In cases where this confirmation is not available, the applicant shall make declaration in the application and take responsibility therefor before law.

2. Within 15 working days as from the date of receipt of the applications, the provincial/municipal Tax Departments shall base themselves on the provisions of Article 4 of the Agreement and the guidance at Point 1, Section I: Scope of application of the Circular, Part A of this Circular to consider and grant written certifications of residential status to the applicants (made according to a set form). The time limit of 15 working days does not include the time for dossier supplementation and explanation.

VI. OTHER PROVISIONS

1. In cases where taxpayers designate their lawful representatives to carry out procedures for application of an Agreement:

1.1. In cases where the designated parties reside in Vietnam, the designating and the designated parties must comply with the current law provisions on notarization and authentication (stipulated in Article 48: Notarization, authentication of designation contracts, designation papers, the Government’s Decree No. 75/2000/ND-CP of December 8, 2000);

1.2. Where the designated parties reside in a foreign country, the designating and the designated parties must comply with the regulations on designation papers, promulgated by the country of which the taxpayers are residents, and consularly legalize such designation contracts or papers.

2. The enclosed copies (except for copies of tax payment documents) must be notarized or authenticated according to law provisions on notarization and authentication.

3. The procedures for consular legalization: signatures and stamps on foreign papers and documents for use in Vietnam must be consularly legalized according to the provisions of the Foreign Ministry’s Circular No. 01/1999/TT-NG of June 3, 1999. Papers and documents issued by the countries signing the judicial assistance agreements with Vietnam, which are in force in Vietnam, need not be consularly legalized.

4. In necessary and reasonable cases, the tax authorities may request the applicants for application of an Agreement to give explanations or supply additional relevant documents.

5. Foreign-language documents must be translated into Vietnamese and such Vietnamese translations must be notarized according to current regulations. In cases where notarization is not required by law, the applicants for application of an Agreement shall take responsibility for the translations.

6. Tax exemption and reduction under an Agreement must be effected on the basis of the tax authorities’ decisions in accordance with the Agreement and Vietnam’s tax law. The tax authorities shall not grant tax exemption or reduction with regard to the tax amounts that arise before the time they receive tax exemption or reduction applications.

7. In cases where foreign residents apply for application of an Agreement to income from many contracts supplied to many persons in different localities in Vietnam, these persons may supply the originals of documents which are prescribed to be consularly legalized and notarized or authenticated to the Tax Department of the place where arise the biggest tax amount requested for application of the Agreement and at the same time supply the copies thereof to the Tax Departments of other localities and clearly state in their applications for application of the Agreement the place to which the originals are supplied.

VII. PROCEDURES FOR SETTLEMENT OF COMPLAINTS

1. In cases where residents of the Contracting State deem that the Vietnamese tax authorities have determined their tax obligation not in accordance with the provisions of an Agreement, they may lodge complaints thereabout in the order prescribed by tax law or complaint settlement documents of Vietnam.

2. Complainants may not lodge their complaints in the order stated at Point 1 above and may lodge their complaints directly with the competent authorities of the Contracting State of which they are tax residents.

3. In order to lodge their complaints, complainants must comply with the following provisions:

3.1. To fulfil all the obligations notified in the tax authorities’ handling decisions before lodging complaints.

3.2. Complaints must be lodged within 3 years as from the time of issuance of the first notice of the tax authorities resulting in the tax handling which the complainants deem to be not in accordance with an Agreement. For taxes deducted at source, such time limit shall be 3 years as from the date the payments related to the tax obligation are made or arise, depending on each Agreement.

3.3. The competent authorities of Vietnam shall not settle complaints that have been settled or are being settled by courts.

Example 44: On June 1, 2000, Mr A, a resident of Vietnam, received a personal income tax payment notice of the Tax Department of province H and he deemed that the tax obligations stated in the notice was not in accordance with the provisions of an Agreement. After fulfilling al the tax obligations stated in the tax notice, Mr A may lodge a complaint directly with the General Department of Taxation - in the capacity as competent authorities of Vietnam - to deal with his case. The time limit for Mr A to lodge a written complaint is 3 years as from June 1, 2000.

E. RESPONSIBILITIES AND POWERS OF COMPETENT AUTHORITIES

To enforce the provisions of the agreements, the General Department of Taxation is authorized by the Finance Minister to perform the following tasks and powers:

1. To promulgate documents notifying the entry into force or termination of effect of each Agreement within the tax service after the effect notices are issued by the Foreign Ministry.

2. To organize the direction, guidance, examination and inspection of the Tax Departments and organizations authorized with the collection task in the implementation of the Agreements;

3. To act as “competent authorities” of Vietnam to deal with matters related to the Agreements, including:

3.1. Studying and settling disputes, complaints, proposals and relevant matters in the course of implementation of the Agreements with the competent authorities of the Contracting State to the Agreements concluded with Vietnam through bilateral agreement procedure prescribed in the Agreements;

3.2. Exchanging information with foreign tax authorities and be responsible for keeping such information secret under the provisions of the Agreements.

F. ORGANIZATION OF IMPLEMENTATION

1. This Circular takes effect 15 days after its publication in the Official Gazette.

2. To annul the circulars guiding the implementation of the Agreements on avoidance of double taxation:

- The Finance Ministry’s Circular No. 52/TC/TCT of August 16, 1997 guiding the implementation of the Double Taxation Avoidance Agreements between Vietnam and other countries.

- The Finance Ministry’s Circular No. 95/1997/TT-BTC of December 29, 1997 guiding and explaining the articles of the Double Taxation Avoidance Agreements concluded between Vietnam and other countries and in force in Vietnam.

- The Finance Ministry’s Circular No. 59/1998/TT-BTC of May 12, 1998 supplementing the Finance Ministry’s Circular No. 95/1997/TT-BTC of December 29, 1997 guiding and explaining the articles of the Double Taxation Avoidance Agreements concluded between Vietnam and other countries and in force in Vietnam.

- The Finance Ministry’s Circular No. 37/2000/TT-BTC of May 5, 2000 supplementing the Finance Ministry’s Circular No. 95/1997/TT-BTC of December 29, 1997 guiding and explaining the articles of the Double Taxation Avoidance Agreements concluded between Vietnam and other countries and in force in Vietnam.

Any problems arising in the course of implementation should be reported by units and agencies to the Finance Ministry for study, guidance and supplementation.

For the Finance Minister

Vice Minister
TRUONG CHI TRUNG

Appendix 1 - HD/HTQT

LIST OF DOUBLE TAXATION AGREEMENTS CONCLUDED BETWEEN VIETNAM AND OTHER COUNTRIES AND TERRITORIES

(in force as of the date of issuance of this Circular)

Ordinal number

Name of Contracting State

Effective date in Vietnam

1

Australia

30/12/1992

2

Thailand

31/12/1992

3

France

01/07/1994

4

Sweden

08/08/1994

5

Singapore

09/09/1994

6

Republic of Korea

11/09/1994

7

Great Britain

15/12/1994

8

Poland

21/12/1994

9

India

02/02/1995

10

Hungary

30/06/1995

11

The Netherlands

25/10/1995

12

Japan

31/12/1995

13

Russia

21/03/1996

14

Bulgaria

04/10/1996

15

Norway

14/04/1996

16

Denmark

24/04/1996

17

Rumania

24/04/1996

18

Malaysia

13/08/1996

19

Uzbekistan

16/08/1996

20

Laos

30/09/1996

21

China

18/10/1996

22

Mongolia

11/10/1996

23

Ukraine

22/11/1996

24

Germany

27/12/1996

25

Switzerland

12/10/1997

26

Belarus

26/12/1997

27

Czech

03/02/1998

28

Luxembourg

19/05/1998

29

Taiwan

06/05/1998

30

Canada

16/12/1998

31

Italy

20/02/1999

32

Belgium

25/06/1999

33

Indonesia

10/02/1999

34

Finland

26/12/2002

35

Iceland

27/12/2002

36

Cuba

26/06/2003

37

The Philippines

29/09/2003

38

Myanmar

12/08/2003